While the African-American unemployment rate remains stagnant at 16.2 percent, the U.S. Equal Employment Opportunity Commission recently held a rare full commission meeting to examine one of the contributing factors to the black unemployment crisis: The widespread use of criminal background checks, which have a major impact on many African-Americans who are under pressure every day to find jobs.
At the EEOC forum, employers and policy and legal experts discussed how employers handle these background checks.
The National Employment Law Project, together with interested organizations around the country, submitted comments to the EEOC applauding the agency’s attention to the issue and calling for updated EEOC guidelines, given the vast expansion of the practice.
“As the use of background checks expands, many employers are routinely excluding all job applicants with criminal records from consideration, no matter how minor or dated their offenses,” said Maurice Emsellem, policy co-director of the National Employment Law Project.
“Background checks are meant to ensure a safe work environment,” Emsellem said, “but many employers have gone way too far, shutting out highly qualified candidates without even bothering to ask common-sense questions: What was the conviction for? How long ago was it? Is it even relevant to this job? What’s the person done with his or her life since?”
The EEOC said black communities are particularly hard hit by the expanded use of criminal background checks by employers, which exacerbates the already severe effects of the recent economic downturn and anemic recovery to date.
According to the EEOC, the average unemployment rate in 2010 for blacks was 16 percent, compared with 8.7 percent for whites and 12.5 percent for Hispanics. The widespread use of background checks only adds to the historic challenges that African-Americans continue to face in finding equal opportunity in employment.
The impact is not only felt by black communities, however. More than one in four U.S. adults — roughly 65 million Americans — have arrests or convictions that will show up in routine criminal background checks, according to a recent report from the National Employment Law Project. Use of these background checks by employers has grown exponentially: 92 percent of employers conduct criminal background checks on some or all job applicants, according to a 2010 Society for Human Resources Management survey, up from 51 percent in 1996.
“We’re dealing with a fundamental issue of fairness here. People are human; we all make mistakes, but mistakes should not define who we are for the rest of our lives. When employers use blanket screening policies that don’t even give highly qualified applicants a chance to explain what the arrest or conviction was about, it becomes a serious problem,” said Emsellem. “Millions of Americans are having these old or minor arrests or convictions come back to haunt them years later, after they’ve already made amends and moved on with their lives.”
The existing EEOC guidelines regarding employers’ use of criminal records date back more than 20 years. In 1987, the EEOC made clear that “an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population.”
Because of this adverse impact, the EEOC concluded in 1990 that “an employer may not base an employment decision on the conviction record of an applicant or employee absent business necessity,” which means that employers must take into account reasonable factors, including the age and seriousness of an offense in relation to the specific job at issue.
“It’s been more than two decades since the EEOC issued its guidelines on how employers should be using arrest and conviction records,” said Emsellem.
“With the rapidly expanding use of these checks, it’s become a huge issue affecting tens of millions of Americans now. We applaud the EEOC commissioners for taking this up, and we urge them to update the guidelines and aggressively enforce the law and expand its education and outreach to employers and workers.”